Corporations, like just about everything else, can have a beginning and an end. You and the other directors of the corporation can choose to terminate the corporation, and then you will have to complete the “winding up” tasks to complete the process.
Approving the Dissolution of the Corporation
Here are the steps that need to occur:
The board of directors meets and adopts a resolution of winding up (terminating) the corporation. After a majority of the board of directors approves of the resolution, they’re then required to give at least 10 days advance notice to shareholders, which will meet to decide the matter.
Unless your bylaws say otherwise, a two-thirds majority of the shareholders must approve of the winding up of the corporation. If your corporation has tiers or classes of shares that are set to vote separately, then you need a two-thirds majority for each class of the shareholders.
Make sure that you properly record the resolution of the board of directors to dissolve, and to note the votes of the shareholders.
An alternative method is to just have all the shareholders sign the “consent” document for the dissolution of the corporation. A business lawyer can help you draw up this consent document. This is the more convenient approach if the directors are also the only shareholders, and everyone agrees to the dissolution.
Since most of the shareholders are on board, your corporation can now fill out and file the certificate of termination with the Texas Secretary of State.
Meet all the tax obligations with the IRS and the state of Texas.
Close your corporate business accounts.
Cancel any pertinent permits and licenses you acquired for your corporation.
Notify all your creditors, vendors, and customers regarding the dissolution of the corporation. You may want to consult an attorney to help you notify anyone who has claims against your corporation.
This is a step you need to take before you can file your certificate of termination with the Texas Secretary of State. This entire process can take 4 to 6 weeks.
First, file Form 05-359 (Request for Certificate of Account Status) with the Comptroller of Public Accounts. This is to request a certificate of account status (Form #05-305), which basically states that your corporation is in good standing and that it has paid all the required taxes.
Once you’ve received Form #05-305 certificate of account status, you can then attach it to the certificate of termination that you will send to the Texas Secretary of State.
Make sure you also deal with your federal tax requirements as well. For most corporations, that means checking the “final return” box on the IRS Form 1120. For S-corporations, it’s on the IRS Form 1120S.
The Certificate of Termination
After the tax clearance, you can now file the certificate of termination. You can get a copy of this form from the Texas Secretary of State website. When you fill-up this form, make sure you supply all the necessary information before you submit the form to the Texas Secretary of State:
Corporation business name
Type of business entity
Date of the corporate formation
Corporate file number, issued to your corporation by the Secretary of State
The name and address of each member of the board of directors, along with the officers
Reason for dissolving the corporation
The effective date for the termination of the corporation
The tax clearance certificate from the Texas Comptroller
The name and signature of the person properly authorized to file the certificate of termination on behalf of the corporation
Mail 2 signed copies of the certificate of termination to the Texas Secretary of State (P.O. Box 13697, Austin, Texas 78711-3697). Also write a check for $40 for the Texas Secretary of State.
The state of Texas may take 3 to 5 business days to process your filing for dissolution. The entire process can then take as long as 5 to 7 weeks to complete. Keep in mind that these timetables are for “normal” times. Under more uncommon circumstances (like pandemics, for example), it may take a longer time to complete the whole process.
What if the dissolution occurs before any shares are issued?
If this is the case, the responsibility falls on the incorporator, who signed and filed the formation documents. The other steps are all the same, except for the steps involving shareholders.
Your main priority when dissolving your corporation is to discharge all your liabilities. That means you have to pay off your creditors and pay all the relevant taxes.
Once these tasks are done, you can then distribute the remaining corporate assets to the shareholders.
Avoiding the Hassles of Reinstatement
One of the first rules concerning the dissolution of your corporation is that everyone who votes for it has to be sure. There should be no flip-flopping on the issue because that leads to further hassles when you begin the tedious task of reinstatement.
It’s like incorporating your business all over again, with fees to pay for. In addition, you’ll have to pay for late reports, and Texas charges huge interest rates on these fees. The longer you wait to pay, the bigger the fees get.
The same hassles result when your corporation fails to comply with rules, such as not maintaining a registered agent or failing to file and pay the yearly franchise tax report within 60 days. The state itself can dissolve your corporation without your approval, and you’ll need to apply for reinstatement if you want to continue your business.
This guide is a simple overview of what can be a complicated matter—especially with creditors and people with claims against your corporation. It’s best that you get assistance from an experienced Texas business lawyer to make sure you do everything right.